Gladue principle seeks to “equalize” application of laws

On Tuesday March 15, a panel event called “Gladue Courts” was held at McGill’s Faculty of Law to discuss how Indigenous people are treated in the Canadian criminal justice system.

Organized by law students Lana Belber and Alice Mirlesse, with support from the Aboriginal Law Students’ Association and SSMU Indigenous Affairs, the event specifically sought to shed light on an often neglected aspect of sentencing in Canadian criminal law — the Gladue principle — which seeks to alleviate the over-incarceration of Indigenous people.

Among the panelists was Aidan Johnson, a former lawyer at Legal Aid Ontario who has regularly represented Indigenous people in the past. Johnson explained that the Gladue decision of the Supreme Court of Canada led to a change in the Criminal Code which requires judges and lawyers to pay particular attention to the unique history and circumstances of Indigenous people. It particularly requires that alternatives to jail time be considered when an Indigenous person is sentenced following a conviction.

“Concern for the over-representation of Aboriginal peoples in jails is a factor underpinning Gladue law,” Johnson explained. “Aboriginal people don’t get a fair shake in the justice system, the rules are not applied equally to them, so Gladue is an equalizing measure.”

The panelists expressed frustration with the legal community’s response to implementing the Gladue principle. Vivien Carli, program manager of the Ungaluk Safer Communities Program at Makivik Corporation, explained that there are few people properly trained to write Gladue reports, and that those who are face time constraints.

“To give you an idea, the Gladue writer is given 20 hours to write a report. […] You have 20 hours to go in, often in a detention center, and talk to someone who you have never met before, and get them to open up and tell you about all their trauma and family history – maybe for the first time in their life. You can imagine the challenges.”

Wayne Robinson, who, with Carli, recently founded the First People’s Justice Centre (FPJC) of Montreal, explained the importance of community organizations filling in the gaps beyond Gladue reports.

“You have 20 hours to go in, often in a detention center, and talk to someone who you have never met before, and get them to open up and tell you about all their trauma and family history – maybe for the first time in their life. You can imagine the challenges.”

“After the Gladue report [is written], the writer leaves, and we’ve opened up a trauma there and there’s no continuum of service,” said Robinson. “The FPJC provides a continuum of service from pre-offence to post-incarceration for Indigenous offenders, ensuring that Gladue is not just a tool to talk about sentencing, but as a more holistic approach.

Mirlesse, a second year law student at McGill, explained to The Daily that the original idea for the event emerged from an assignment that second year law students were given regarding Gladue principles. The organizers wanted to “give an opportunity to reflect on these principles and what they meant for the community,” Mirlesse said. Mirlesse added that, without sufficient context, through which students could be made aware of the colonial and racist legacies of Canadian legislation, there was “too big of a risk for students to perpetuate stereotypes of colonization and racial prejudice.”

André Moreau, a Metis student in his first year of McGill law school who attended the event told The Daily, “I thought it was really nice to see different points of view, from the policing side to the community side, even a more legal side.”

“Gladue is definitely a starting point. There has to be some sort of method to address this issue when it comes to justice. However it is a broader issue with access to healthcare and education as well, because they all go hand in hand at the end of the day,” Moreau said.

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